Rush is suing the paper’s publisher Nationwide News and its reporter Jonathon Moran for defamation, over articles alleging Rush acted inappropriately while performing in the STC’s 2015-16 production of King Lear.
The trial is due to start in August or September, but this month the newspaper filed a cross claim against the STC, which would pave the way for the theatre company to help pay damages if the court finds the newspaper has defamed Rush.
During a hearing in the Federal Court on Monday, barrister Alec Leopold SC for Nationwide News said his clients maintained they did not defame the 66-year-old.
“Anything I say about us being liable is only an assumption, it is not saying that we are admitting or submitting in an way, shape, or form,” Mr Leopold said.
However, he added that if the court later finds his clients did defame Rush, then it should accept the STC first published defamatory material to the tabloid.
Mr Leopold said the STC provided three key statements to Mr Moran confirming the allegations he put to them, which were then included in the newspaper’s reporting.
Rush’s barrister Sue Chrysanthou argued any “publication” by the STC was made to one person, journalist Jonathon Moran, compared with the damage caused to the Oscar winner by the newspaper’s publication to more than 1 million readers.
“It is frankly absurd to suggest the STC is liable for this article, it is nonsense,” Ms Chrysanthou told the court.
“A person who merely contributes to the material is not a publisher … you can’t sue a source for being liable for the entire publication, there is a consistent series of judgements on this.”
Ms Chrysanthou said if the newspaper was allowed to continue with its cross-claim, it would be a “waste of the court’s time” and could add an extra week to the defamation proceedings.
“Why should my client have to pay for his lawyers to listen to a week of disputes between Nationwide News and the STC?” she asked.
Ms Chrysanthou suggested if the tabloid wanted to try to sue the STC after the trial, it could, but Mr Leopold told the court it would be in Rush’s interests to include the matter at trial.
Justice Michael Wigney will make orders on Friday.